TORT

Introduction- The Law of Tort

The word ‘Tort’ is derived from the Latin equivalent ‘tortum’ which means wrong.

A tort is, therefore, a wrong done by one party to another.

A tortfeasor is a person who commits a tort.

Torts and other legal subjects

Crimes are those acts (and sometimes omissions) which society as a whole says is
completely unacceptable.

Crimes are normally prosecuted by the state through criminal Courts, whereas a tort is a
civil action which an individual prosecutes in a civil Court if he decides he wants to take
legal action.

There are, however, torts such as assault and battery, which may also be treated as crimes.
For such a situation, a civil remedy may also be obtained after the completion of the
criminal proceedings.

The result of the criminal proceedings may be used as evidence in the civil claim and so
it is often advisable for the victim to wait for the outcome of the criminal proceedings
before launching his civil action. Where the person who committed the tort is acquitted in
the criminal proceedings, this is not conclusive evidence in the civil action because the
standard of proof (action is beyond a reasonable doubt, whereas it is on the balance of
probabilities in the civil action). So the fact of acquittal does not mean that the victim will
not be able to prove his civil case on the balance of probabilities.

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 NEGLIGENCE
Introduction
The first tort which will be discussed is the Tort of negligence. There are several aspects
to the tort of negligence. We will in particular look at the following:
1. Duty of Care
2. Breach of Duty
3. Proof of Negligence
4. Duty of Care between parties involved in Construction contracts
5. Causation
6. Remoteness of Damage
7. Other Factors to be taken into consideration
8. Contributory Negligence

Each topic will be dealt with individually and some sub topics will fall underneath each.

NEGLIGENCE - DUTY OF CARE

INTRODUCTION
In the study of the law of tort the centre stage is occupied by the tort of negligence. The
tort of negligence has been defined by Winfield and Jolowicz on Tort:‘ Negligence as a
tort is the breach of a legal duty to take care which results in damage, undesired by the
defendant to the plaintiff.

ELEMENTS OF A DUTY OF CARE

The tort consists of three distinct elements.

First: The defendant must owe to the plaintiff a duty of care.

Second: The second element is that the defendant must breach the duty of care which he
owes to the plaintiff.

Third: The plaintiff must suffer damage as a result of the defendant’s breach of his duty
of care.

The two main principles here are:

1. The defendant’s negligence must have caused the damage to the plaintiff and
2. The damage which the plaintiff suffered must not be too remote a consequence of the
defendant’s negligence.

Each principle will be dealt with in more detail.

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 EXISTENCE OF A DUTY

A person is not liable for every negligent act which he or she commits.

There has always been some control device which has identified and limited the
situations in which a person maybe held legally liable for the consequences of his
negligence. The principal control device is the requirement that the defendant owes to the
plaintiff a duty of care.

Old Test – Atkin’s ‘Neighbour Principle’

In the famous case Donoghue v Stevenson (1932) a general principle was firmly
established for determining the existence of a duty of care. The defendants were
manufacturers of ginger beer. A friend of the plaintiff purchased a bottle of ginger beer
for the plaintiff. The plaintiff drank some of the ginger beer but when she poured out the
remainder of the contents of the bottle a decomposed snail floated out of the bottle. The
plaintiff claimed that she suffered severe shock and became very ill as a result of this
incident. She was unable to proceed against the manufacturers in contract because there
was no contract between the parties. So she brought an action in tort against the
manufacturers of the ginger beer. (The tort being that the manufacturers were
negligent).The House of Lords held that the defendants being the manufacturers of the
ginger beer owed a duty of care to the plaintiff as the ultimate consumer and purchaser of
the ginger beer to take reasonable care to ensure that the bottle did not contain some
substance which was likely to cause injury to health.

This decision established the principle of ‘who is my neighbour?’ (Remember a duty of

care is owed to your ‘neighbour’). In the judgment it was stated:

‘ In English law there must be and is some general conception or relations giving rise to
a duty of care of which the particular cases found in the books are but instances... The
rule that you are to love your neighbour becomes in law you must not injure your
neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply.
You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who then, in law is my neighbour ? The
answer seems to be- persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I am directing
my mind to the acts or omissions which are called in question.’

Before 1932 there was no generalised duty of care in negligence. The tort did exist and
was applied in particular situations where the Courts had decided that a duty should be
owed, eg, road accidents or dangerous goods. As was stated before, in Donoghue v
Stevenson [1932] AC 562, Lord Atkin attempted to lay down a general principle which
would cover all the circumstances where the Courts had already held that there could be
liability for negligence.

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Three Stage Test - Aspects of a ‘duty of care’

Although a duty of care was originally established by Lord Atkin’s “Neighbour” test, the
modern test is now a three stage test. The three requirements that must be satisfied before
a duty of care is held to exist were laid down by Lord Bridge in Caparo Industries v
Dickman [1990] 1 All ER 568:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients

in any situation giving rise to a duty of care are that there should exist between the party
owing the duty and the party to whom it is owed a relationship characterised by the law
as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the
Court considers it fair, just and reasonable that the law should impose a duty of a given
scope upon the one party for the benefit of the other."

Therefore, in other words, there must be:

(a) foreseeability of the damage;

(b) a sufficiently 'proximate' relationship between the parties; and

(c) it must be fair, just and reasonable to impose such a duty.

Foreseeability and proximity

'Foreseeability' means whether a hypothetical 'reasonable person' would have foreseen

damage in the circumstances.

'Proximity' is shorthand for Lord Atkin's ‘neighbour principle. It means that there must be
legal proximity, i.e. a legal relationship between the parties from which the law will
identify a duty of care.

The role of policy

Policy is shorthand for 'public policy considerations'. ‘Public policy considerations’ refers
to ideas which are kept in mind and used to guide the making of decisions that affect the
society on a whole.

Policy considerations were recognised in the Wilberforce test and the test in Caparo v
Dickman.

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Public policy considerations could lead to extending the range of liability for negligence.

It was sometimes argued that extending the range of liability for negligence would lead to
a flood of litigation or of fraudulent claims. These arguments were at one time given
greater acceptance than they are today. But other arguments, such as the possible
commercial or financial consequences, the possibility of not being sure who is liable, and
potential conflicts with rights in property or other social or moral values, are given due
consideration.

In recent years the Courts have identified a wide range of factors that may be relevant to
denying that one has a duty of care. For example, a duty of care may not exist where:

(a) The claimant is the author of his own misfortune.

(b) A duty of care would lead to unduly defensive practices by defendants seeking to
avoid claims for negligence with detrimental effects on their performance of some public
duty.

(c) Awards of damages against a public authority exercising a public function would have
an impact upon the resources available to the authority to perform its duties, both in terms
of the damages and costs, and in terms of the resources required to investigate and defend
spurious claims.

(d) A duty of care would cut across a complex laws established by Parliament for
regulating particular circumstances, such as the regulation of financial markets or the
protection of children at risk.

(e) There is an alternative remedy available to an aggrieved claimant, such as a right of

appeal from the decision of a government officer or department, or another source of
compensation, or another cause of action, such as a claim for breach of contract, even
where the action would be against a different defendant.

(f) Where a duty of care would tend to undermine the requirements of other causes of
action, particularly in the case of complex commercial contracts where the parties have
had the opportunity to negotiate a detailed structure of contractual negotiations.

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 ACTS AND OMISSIONS

The distinction between misfeasance (to do something wrong) and non-feasance

(failure to perform an act required by Law )

There are two types of omissions. Firstly, a person may fail to take appropriate
precautions, which would be regarded as a negligent act. Secondly, it may refer to passive
inaction where a person does not take any action. In Curran v Northern Ireland Co-
ownership Housing Association the Plaintiffs bought a house on which the previous
owner had built an extension with the aid of an improvement grant provided by the
defendants. Under the terms of the statutory regulations the defendants had to be satisfied
that the property met certain standards of habitation and the work had to be executed to
the satisfaction of the defendants. After purchasing the property the plaintiffs discovered
that the extension had been defectively constructed. The defects were so poor that the
extension had to be completely rebuilt at considerable expense. In these circumstances,
alleging that they had been negligent in the exercise of their statutory powers and that
their negligence had caused the plaintiffs loss.

The House of Lords held that the defendants did not owe the plaintiffs a duty of care
because they held that the purpose behind the statutory regulations was to ensure that
public funds were properly spent and not to protect the interest of the owner-occupier in
the beneficial enjoyment of his dwelling-house. Therefore, as the statutory regulations
were not created for the benefit of the plaintiffs, the defendants did not owe them a duty
of care.

The important point to note for present purposes is that Curran appears to be a case of
nonfeasance. (Nonfeasance means ‘failure to perform an act required by law’). It was the
builders of the extension who were the true cause of the loss because it was their
negligence which resulted in the construction of a defective building. The argument
against the defendants was that they were negligent because they had a duty to carry out
their supervision of the builder’s work. It was further argued that due to their failure to
supervise the work with reasonable care and skill, they had failed to prevent the builders
from building a poor and faulty structure.

However, the general rule is that there is no duty on a person to take action in order to
prevent harm from affecting others. For example, in Smith v Littlewoods Organisation
Ltd [1987] 1 All ER 710 Lord Goff analysed the mere-omissions rule and then
considered the exceptions to the rule. There are some circumstances where the Courts
have established duties of affirmative action. These may arise where:

(a) there is an undertaking by the defendant;

(b) there is a special relationship between claimant and defendant;
(c) the defendant has control over a third party who causes damage to the claimant; or
(d) the defendant has control over land or something likely to be dangerous if interfered
with.

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 OTHER SITUATIONS IN WHICH A PERSON MAY HAVE A DUTY OF CARE

There are a variety of situations in which a duty of care may arise.

Undertaking
A person who undertakes (chooses) to perform a task (even without having a
responsibility or reason to do it but just chooses to do it out based on their own choice to
do so), assumes a duty to act carefully in carrying it out.

Relationship between claimant and defendant

There are a number of relationships that give rise to an affirmative duty to prevent harm.
These include employer and employee, parent and child, captain (or carrier) and
passenger, referee and player in a colts rugby match, hotelier and patron, the organiser of
a dangerous competition and a visibly drunken participant, and occupier and visitor.

Control over third parties

In some circumstances, a person may be in such a relationship with a third party as to
have a duty to control the third party's conduct in order to prevent harm to the claimant.
These include employer and employee, parent and child, gaoler (prison guard) and
prisoner, mental hospital and patient and even car owner and an incompetent or drunken
driver.

Control of land or dangerous things

An occupier's control of land may give rise to an affirmative duty in relation to the
behaviour of visitors or even acts of nature. Where the defendant has control over some
object which is likely to be particularly dangerous if interfered with by a third party he
may be under a duty to prevent such an interference. This has been applied to the theft of
a poisonous chemical by young children.

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 THE DUTY OF CARE AND PROTECTED INTERESTS

There are various types of loss that a person can suffer. A person can be reimbursed for
any physical damage that is caused by another person’s negligence. However, the law
also covers other types of ‘non-physical’ loss.

Donoghue v. Stevenson was a case in which it was alleged that the plaintiff had suffered
personal injury. The law of tort had never had any great difficulties in recognizing that a
person can recover damages (money) for personal injury suffered as a result of the
negligence of the defendant. Therefore, in most road accident cases we have no problem
in recognizing that a road user owes another road user a duty of care. But where the loss
which the plaintiff suffers is no physical injury or damage to property then difficulties can
emerge in establishing the existence of a duty of care. This is particularly so where the
loss which the plaintiff suffers is economic or financial loss. The problem can also arise
where other losses are suffered, for example, where the plaintiff suffers psychiatric injury
as a result of the negligence of the defendant.

ECONOMIC LOSS

The Courts do not attach as much importance to the protection of a plaintiff’s economic
well-being as they do to his physical well-being.

The general rule is that a plaintiff can recover in respect of economic loss which is
consequential upon physical injury or property damage.

The most obvious example in this category is a claim for loss of earnings consequential
upon negligently inflicted personal injury.

CARELESS ACTS

There are two broad categories of case in which the claimant sustains economic loss
(money) as a result of a negligent act:

(a) As a consequence of physical damage to a third party's property

Firstly, the damage may affect the claimant's ability to carry on his business.

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The Courts have consistently refused to allow recovery for economic loss in these
circumstances. However, the distinction between pure economic loss and economic loss
consequent upon physical damage is illustrated by:

Spartan Steel & Alloys v Martin [1972] 3 All ER 557

In this case the defendants negligently cut through the power cable leading to the
plaintiff’s factory. The power was cut off for 14 hours. The plaintiffs who were in the
metal business ended up having damage assessed at $368 and lost $400 in profits. They
also sought to recover $1,767 in respect of profits which could have been earned on
further melts which would have been made had it not been for the power cut. It was held
that the plaintiffs could recover in respect of the damage to the molten metal and $400
consequential profits but they could not recover in respect of $1767 loss of profits. Lord
Denning stated that the only truly consequential loss was recoverable and that apart from
economic loss was irrecoverable. He said that a power cut of this nature was the type of
thing which one must put up with and either insure against such losses or use a standby
system.

Secondly, the claimant may have a contractual right to use the property for the purposes
of his business, but no proprietary interest in it. Damage to the property may put him to
the expense of repairing it (depending on the terms of the contract) and will interfere with
his ability to use the property for profitable purposes. Such loss cannot be recovered.

Thirdly, the claimant may suffer loss as a result of damage to property belonging to a
third party where the claimant is 'at risk' as to the loss at the time of the damage under a
contract with the third party. Such financial loss cannot be recovered.

(b) As a consequence of acquiring a defective item of property

In this category the claimant owns the property, but it is discovered after he has acquired
it that the property has a defect and the claimant has to spend money in repairing or
replacing it. It is this category of cases which has produced the most noticeable changes
in judges’ attitudes in relation to claims for economic loss. First the judges were in favour
of allowing claimants to recover for such losses where the property consisted of a
dangerously defective building. Later judges were allowing claimants to succeed for the
loss where the defect could not be categorised as dangerous. But eventually the judges
returned to a more traditional approach in 1990, when the House of Lords held that the
damage in both cases was purely economic and therefore irrecoverable.

The House of Lords attempted to establish a general duty of care in respect of pure
economic loss resulting from a negligent act, based on the closeness of the relationship
between the parties and reliance by the claimants on the defendants' skill and experience
in Junior Books v Veitchi [1982] 3 All ER 201.

The Courts began to criticize the Junior Books case almost immediately. It has repeatedly
been described as limited to its own facts, that is, it was felt that the findings couldn’t

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automatically apply in every similar case. In D & F Estates v Church Commissioners
[1988] 2 All ER 992, the House of Lords said that the Junior Books case was so far
dependent on the 'unique' relationship between the claimant and the defendant that it
cannot be regarded as laying down any general principle in the law of tort.

NEGLIGENT MISSTATEMENT

Economic loss is recoverable where the loss has been suffered as a result of the plaintiff’s
reliance upon the defendant’s negligent misstatement.

Misstatements

In Hedley Byrne v Heller [1963] 2 All ER 575,

The defendant must have voluntarily assumed a responsibility towards the plaintiff and
the second is that the plaintiff must have reasonably relied upon the defendant.

The House of Lords held that in the appropriate circumstances there could be a duty to
take reasonable care in giving information. There appeared to be three requirements: (a)
the claimant relied on the defendant's skill and judgment or his ability to make careful
enquiry; (b) the defendant knew, or ought reasonably to have known, that the claimant
was relying on him; and (c) it was reasonable in the circumstances for the claimant to rely
on the defendant.

In some circumstances a negligent statement made by A to B and acted upon by B causes

financial loss to C. The classic example is a reference given by A to B about C, normally
for employment purposes.

The concept of voluntary assumption of responsibility (willingly taking on the

responsibility) has also been used to explain the liability of a lawyer to a beneficiary
under a will who has lost their inheritance due to the lawyer's negligence in carrying out
the testator's instructions.

In Ross v Caunters [1979] 3 All ER 580 the defendant was a lawyer who failed to tell the
testator (person making the will) that attestation (witnessing) of the will by the spouse of
a beneficiary would invalidate the gift to the beneficiary. The plaintiff whose husband had
signed the will sued the defendant in negligence for the loss of the gift under the will.
This was not a case in which the plaintiff suffered physical injury or damage to her
property. The only ‘loss’ which she suffered was that she did not receive the gift
promised to her in the will. Her loss was classified as pure economic loss and
recoverable.

NERVOUS SHOCK OR PSYCHIATRIC ILLNESS

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Another type of loss or interest in respect of which the Courts have been reluctant to
recognize a duty of care is psychiatric illness or nervous shock. The term 'nervous shock'
is used by lawyers to signify a medically recognised psychiatric illness or disorder.
'Psychiatric damage' encompasses all relevant forms of mental illness, neurosis and
personality change. This is distinguished from emotional distress or grief which normal
individuals may suffer when someone else is injured or killed, though the distinction may
sometimes be difficult to draw. There can be no claim for emotional distress, anguish or
grief unless this leads to a positive psychiatric illness, such as an anxiety neurosis or
reactive depression, or physical illness, such as a heart attack.

(1) Primary victims

The House of Lords held that in the case of a 'primary victim' if personal injury of some
kind to the claimant was foreseeable the defendant would be liable for psychiatric injury
sustained as a result of the defendant's negligence, irrespective of whether psychiatric
injury was foreseeable.

The Courts have been extremely cautious about admitting claims for psychiatric harm
which were not the result of physical injury to the claimant. The first response was to
deny any action for psychiatric harm which was not the product of some form of physical
impact with the claimant.

However, there are some limiting factors.

(a) The psychiatric injury must have been the product of what the claimant perceived
with his or her own unaided senses.

(b) The nature of the relationship between the accident victim and the person who
suffered the psychiatric injury is important.

(c) The test of liability for shock is foreseeability of injury by shock, thus separating
psychiatric damage from other forms of personal injury.

(d) When applying the test of foreseeability of injury by shock it has to be demonstrated
that the claimant is a person of reasonable mental strength and is not unduly susceptible
to some form of psychiatric reaction.

(2) Secondary victims

A person may be a 'secondary victim' (a person who suffers psychiatric damage as a

result of harm done to another). Such a claim was considered by the House of Lords in
McLoughlin v O'Brian [1982] 2 All ER 298

In such cases, there must be:

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(a) reasonable foreseeability of psychiatric illness arising from the close relationship of
love and affection between the claimant and the primary victim of the defendant's
negligence;

(b) proximity in terms of physical and temporal connection between the claimant and the
accident caused by the defendant;

(c) the psychiatric harm must come through the claimant's own sight or hearing of the
event or its immediate aftermath.

(3) Employees

Employers may be responsible for psychiatric injury caused to employees.

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 NEGLIGENCE: BREACH OF DUTY

Recap: to determine whether a tort has taken place, one must first establish if there was a
duty of care owed by one person to another. After establishing that there was a duty of
care owed, then we have to identify whether the duty was breached.

While the standard is an objective one, the question whether a particular defendant has
breached the standard of care is largely a question of fact. There are certain principles
which the Court will apply in considering whether the defendant has breached the
standard of care.

THE REASONABLE MAN TEST

THE REASONABLE MAN

Negligence is the conduct falling below the standard demanded for the protection of
another against the unreasonable risk of harm. The standard of care is that of the
reasonable man. A potential defendant will be negligent by falling below the standards of
the ordinary reasonable person in his/her situation, ie by doing something which the
reasonable man would not do or failing to do something which the reasonable man would
do.

The most popular definition of the reasonable man is that he is the ordinary man, the
average man, or the man on the JUTC bus.

In Glasgow Corporation v Muir [1943] 2 AC 448 the manageress of the defendants’

tearoom gave a church party permission to use the tearoom when rain prevented them
from eating their food outside. Two of the leaders of the church party were carrying a tea
urn down a narrow passage when one of them for some unexplained reason let go of the
handles of the urn, with the result that tea poured out and some children were badly
scalded. The plaintiffs sought to recover damages from the defendants on the ground that
the manageress was negligent in giving permission for the tea urn to be brought down the
narrow passage. One of the issues argued before the House of Lords concerned the
standard of care owed by the defendants.

Lord MacMillan thought it was impersonal to have a standard of foresight of the

reasonable man. Having such a standard doesn’t adequately address the particular
behavior of each individual. It doesn’t take into consideration each person’s unique
differences. With this standard, the reasonable man is expected to be very confident in
their decisions and does not hesitate at all, which is not the average behavior of an
individual.

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THE OBJECTIVE STANDARD

The Court will decide if the defendant fell below the standard of the reasonable man. The
standard of care expected from this hypothetical character is objective; not taking into
account the characteristics or weaknesses of the defendant in the instant case. For
example, the standard of care to be expected from a learner-driver is the same as that
required by a qualified driver.

Likewise, a householder doing Do-It-Yourself (DIY) work must not fall below the
standard to be expected of a reasonably competent carpenter in doing the work.

UNFORESEEABLE HARM

The standard of care is based upon what the reasonable man would have foreseen in the
circumstances.

If the reasonable person would not foresee a harmful consequence of an action, then a
defendant will not be negligent in failing to take precautions.

FACTORS TO BE WEIGHED IN ESTABLISHING BREACH

There are several factors to take into consideration in order to establish whether a duty of
care has been breached.

MAGNITUDE OF HARM

Although harm to someone may be foreseeable, the risk of that harm being inflicted may
be so unlikely that the defendant will not be required to take precautions against it
happening. In Bolton v Stone [1951] 1 All ER 1078 Lord Oaksey said that the standard
of the reasonable man did not require a man to take precautions against every foreseeable
risk and that life would be almost unbearable if the ordinarily careful man were to
attempt to take precautions against every possible risk which he can foresee.

Therefore, the Court will consider the likelihood of harm occurring. The greater the risk
of harm, the greater the precautions that will need to be taken.

Sometimes, the risk of harm may be low but this will be counter-balanced by the
seriousness of harm to a particularly vulnerable claimant. This is because some persons
are more vulnerable than others, such as the young, ill or elderly.

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DEFENDANT'S PURPOSE

The social utility of the defendant’s conduct is a relevant factor in considering whether
the defendant was negligent. The greater the social utility of the defendant’s conduct, the
less likely it is that the defendant will be held to be negligent. Therefore, if the
defendant's actions served a socially useful purpose then he may have been justified in
taking the less likely greater risks.

PRACTICABILITY OF PRECAUTIONS

If the cost of eliminating the risk is exorbitant or far outweighs the benefit to be gained
by eliminating the risk, then it will not generally be seen as reasonable that a person
would be negligent if they fail to eliminate the risk. The Courts expect people to take only
reasonable precautions in guarding against harm to others. Therefore, it cannot be too
farfetched.

GENERAL PRACTICE

If the defendant’s behavior is in line with what is considered common practice, there
would then be very good evidence that the defendant has not been negligent. Where there
is a common practice in the activity with regard to which the defendant is alleged to have
been negligent, keeping in line with that common practice is very good evidence that the
defendant has not been negligent. It is not however conclusive evidence that the
defendant has not been negligent because the common practice itself may be negligent. If
the defendant acted in accordance with the common practice of others this will be strong
evidence that he has not been negligent.

However, this will not prevent the Courts from declaring a common practice to be
negligent in itself.

EMERGENCIES

Where the defendant gets in an emergency or in the heat of the moment the standard of
care is adjusted to take account of the situation in which the defendant is placed. Provided
that the decision which the defendant takes is a reasonable decision in the circumstances
he will not be held to have been negligent, even though with hindsight he would have
adopted another course of action.

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SPECIAL STANDARDS APPROPRIATE TO PROFESSIONALS

A person who claims to have a special skill is judged, not according to the standard of the
reasonable man in the street, but according to the standard of the reasonable person
possessing the same skill which he claims to possess. Professionals will be judged by the
standard of the ordinary skilled man exercising and professing to have that special skill.

People holding themselves out as having a specialist skill will be judged by the standards
of a reasonably competent man exercising that skill.

STANDARD APPLIED IN SPORTING SITUATIONS

Spectators at a sporting event take the risk of any injury from competitors acting in the
course of play, unless the competitor's actions show a reckless disregard for the
spectator's safety.

Participants in sport owe a duty of care to each other which can be breached.

A referee who oversees a match may also owe a duty of care to see that players are not
injured.

STANDARD APPLIED TO CHILDREN

Where it is alleged that a child has been negligent, the question arises as to the standard
of care required of the child. Children cannot plead infancy as a defence to a tort.
However, children and young people will usually be judged by the objective standard of
the ordinarily careful and reasonable child of the same age. They won’t be compared to
an adult.

However, if a young person deliberately commits an action with an obvious risk of harm,
they may be judged by the standards of an adult.

Alternatively, school authorities or parents, may be liable in negligence for failing to

adequately supervise a child who causes harm to another.

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 PROOF OF NEGLIGENCE

IMPORTANCE OF EVIDENCE IN ESTABLISHING PROOF OF BREACH

The claimant bears the burden of proving, on the balance of probabilities, that the
defendant was negligent. However, in some situations a claimant may be able to rely on
the maxim, i.e. the thing speaks for itself. By this rule of evidence, the mere fact of an
accident occurring raises the inference of the defendant's negligence, so that a prima facie
case exists. In other words, it’s assumed that "You may presume negligence from the
mere fact that it happens" (Ballard v North British Railway (1923) SC 43).

WHEN THE MAXIM ‘THE THING SPEAKS FOR ITSELF APPLIES

There are three conditions that must be fulfilled before, thing speaks for itself.

(a) The defendant must have control over the thing that caused the damage.

(b) The accident must be such as would not normally happen without carelessness.

(c) The cause of the accident must be unknown. There must be no explanation for the
accident.

IT’S EFFECT

There are two opinions as to the effect of the maxim “the thing speaks for itself”.

(a) It raises a prima facie inference of negligence, (which means that negligence is
assumed on the first impression of seeing the case). This assumption of negligence
requires the defendant to provide a reasonable explanation of how the accident could
have occurred without negligence on his part. If the defendant provides an explanation,
the inference is rebutted and the claimant must prove the defendant's negligence.

(b) It reverses the burden of proof requiring the defendant to show that the damage was
not caused by his failure to take reasonable care. (The burden of proof is usually on the
claimant/ plaintiff – they are usually required to prove that the defendant’s negligence
caused them harm)

The opinion of the Privy Council is that burden of proof does not shift to the defendant
because the burden of proving negligence rests throughout the case on the claimant.

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 DUTY OF CARE IN TORT BETWEEN PARTIES INVOLVED IN
CONSTRUCTION CONTRACTS UNDER STANDARD FORMS OF
CONTRACT

1. There is a general rule that a contractor cannot sue the “Certifier of Payments”
under the standard form of contract.

Sutcliffe v Thackrah 1974

In this case, the House of Lords decided that an architect could be rightly sued by the
client for negligence in wrongly certifying payment for work improperly done. There was
also a general understanding that the architect owed a duty to the contractor too, in effect
holding a balance between the client and the contractor.

If the architect/ engineer had been appointed as arbitrator to resolve a specific dispute,
then this immunity would have been accorded him. However, the issue of interim
certificates was a normal contractual procedure and not the result of a dispute (i.e. the
contract contained other clauses to cover the matter of what to do if the contractor
disagreed with the valuation).

It is inevitable that, sooner or later a contractor would allege negligent failure to certify
against an architect/engineer. This occurred in Pacific Associates v Baxter (1989) 2 All E
T159. The Court of Appeal decided that there was no duty of care owed by the Engineer
to the Contractor. This case might possibly have been regarded as turning on some special
provisions in the contract (a disclaimer clause, also the existence of an arbitration clause
but it has since been treated as laying down a general principle of non-liability).

In Pacific Associates v Baxter (1989) 44 BLR 33

Pacific entered a contract with the ruler of Dubai for dredging and reclamation work. The
contractor was aware when he tendered that there would be supervision by a consultant
engineer acting for the client and that payment would be by certificates issued by the
engineer. The contractors encountered a lot of hard material which made the work more
difficult. They claimed that the tender information was which meant that he tender price
was too low. A provision in the contract allowed for extra payment if the contractors
encountered hard material during the dredging work which could not have been
reasonably foreseen by an experienced contractor. The contractors made several claims
under this provision all of which were rejected by the engineer, who believed that the
hard material was reasonably foreseeable. The contractors brought an action against the
engineer claiming $45 million. It was alleged that the engineer was negligent or under a
duty to act fairly and impartially in administering the contract and in breach of that duty
by failing to issue certificates for payment to the contractors for the removal of the hard
material.

The Court of Appeal rejected the claim. Where there was a contract between a client and
an engineer there was a duty on the engineer to the client to ensure reasonable care and

18
skill in overseeing the contractor’s work. The engineer would be liable to the client under
contract if the client was sued by the contractor for economic loss (financial loss)
suffered by the contractor because of the negligence of the engineer.

The engineer had no contractual relationship with the contractor and since there was no
rule in tort that the engineer would be liable no claim could be made against the engineer.
The Court also observed that the contractor could (under their contract with the
employer) claim for extra payment. There was an arbitration provision available to the
contractor if having followed the correct procedure he remained dissatisfied with the
engineer’s decision.

2. The Engineer’s duty to warn the Contractor of danger. Generally, since the Contractor
is responsible for the safety of his workforce, the Engineer/Architect will not be under a
tortuous duty to warn. However, there is an exception as the Engineer imposes a
particular sequence of working upon a contractor which involves keeping elements of the
structure in a dangerous condition, then the Engineer will be required to provide
reasonable warnings.

In Old school v Gleeson (Construction) Ltd and Others (1976)

A contractor’s excavation undermined the foundation of a house causing the collapse of
the party wall of a house. The design of the consulting engineer was held not to be
unsound. It was held by the High Court that it was not the responsibility of the
consulting engineer to instruct the contractor as to the way in which the contract works
were done. Even if the consulting engineer knew or ought to have known that a
contractor was failing to take proper precautions so that there was a risk of damage to
property, the duty that the engineer owed the contractor was limited to giving a warning
to take the necessary precautions. In this case the engineer was held to have given
warning and so was not liable to the contractor.

In Clay v AJ Crump and Sons Ltd and Others (1964)

An architect agreed without making an inspection that it was safe to leave a wall of a
building standing. This was a departure from the demolition proposals. The architect
accepted the assurance of the demolition contractor; he visited the site but failed to
inspect the wall. If he had, he would have appreciated that it was unsafe to leave it
standing.

It was held that the architect’s actions constituted negligence and he together with the
demolition contractor and main contractor were required to pay damages to Clay who had
been injured when the wall fell.

In Clayton v Woodman & Sons (Builders) Ltd 4 BLR 65

An architect was sued by a bricklayer when a wall collapsed. The accident occurred when
the bricklayer was cutting a chase into a brick wall. When the architect visited the site to
inspect the wall the bricklayer suggested to him that a better way of dealing with the wall
would be to demolish it and then rebuild it. The architect declined to order this change to
the contract. The bricklayer continued cutting the chase and the wall fell injuring him. It

19
was a provision in the specification that the wall was to be supported while the chase was
being cut but this was not done.

It was held that the architect was not liable to the bricklayer for negligence. What the
architect had done was simply to leave the contract to be performed in the required way.
The fact that that was not done was not his responsibility. The architect owed no duty of
care to the bricklayer. The difference between Clayton and Clay is that with Clayton the
architect did not change the contract or involve himself in the contract execution. In
Clay’s case the architect had varied the contract and involved himself in the contract
works.

3. The Contractor does not owe the architect a duty of care to warn him that his design is
inadequate.

Negligence

A defendant is not liable in negligence unless the plaintiff’s loss has been caused by the
negligence of the defendant.

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 CAUSATION

Causation refers to whether the act of one person resulted in the other person’s harm.

CAUSATION IN FACT

‘BUT FOR TEST’

In considering whether the defendant’s act or omission was a cause of the plaintiff’s loss
the test which is generally adopted is called the ‘but for test’. The claimant must prove
that harm would not have occurred 'but for' the negligence of the defendant. In
Cork v Kirby MacLean Ltd [1952] Lord Denning said that ‘if the damage would not have
happened but for a particular fault, then that fault is the cause of the damage; and if it
would have happened just the same, fault or no fault, the fault is not the cause of the
damage.’

This test is best illustrated by:

Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068 where the plaintiff’s
husband went to a casualty department of a hospital complaining that he had been
vomiting. The doctor refused to examine him and he was told to go home and consult his
own doctor in the morning. The plaintiff’s husband was in fact suffering from arsenical
poisoning and he died some five hours later. The plaintiff sued the hospital alleging that
they had been negligent in the treatment given to her husband and that as a result of their
negligence her husband had died. It was held however, that the defendants were not liable
to the plaintiff as their negligence had not caused her husband’s death. Even if the doctor
had examined her husband and treated him, her husband would still have died from the
poisoning and so the doctor’s negligence was not a cause of the husband’s death.

Pre-existing condition

If the damage is attributable to a pre-existing condition rather than to the negligence of

the defendant, the defendant will not be liable for the full extent of the damage. In Culter
v. Vauxhall Motors Ltd [1971] 1 QB 418 the plaintiff suffered a graze to his right ankle in
an accident caused by the negligence of the defendants. Shortly after the accident it was
discovered that the plaintiff had a pre-accident condition of varicosity in the veins of both
of his legs. Because an ulcer had formed on the site of the graze it was decided to operate
immediately to cure the varicose condition of his legs. As a result of the operation the
plaintiff suffered pain and discomfort and a loss of earnings of $173. He sought to

21
recover this sum from the defendants. It was held that the plaintiff was entitled to
damages for the graze but that he could not claim for the losses due to the operation. The
condition of varicosity was not connected with the negligence of the defendants and it
would have required treatment at some time in the future. So the plaintiff would have
suffered such a loss at some time in the future and the defendant’s negligence was not a
cause of the plaintiff’s loss.

Omissions

It is extremely difficult to apply the ‘but for’ test where the negligence of the defendant
takes the form of an omission (failure) to act. In McWilliams v Sir William Arrol & Co
Ltd [1962] 1 WLR the plaintiff, a steel erector, fell to his death at work. At the time of the
accident he was not wearing a safety belt. The defendants were in breach of their
statutory duty in failing to supply safety belts. However, there was evidence that the
plaintiff had rarely, if ever, worn such a belt in the past and so the defendants argued that
he would not have worn a safety belt even if one had been made available. The
defendants won.

PROOF OF CAUSATION

Considerable difficulty arises where it is unclear whether or not the damage to the
plaintiff has been caused by the negligence of the defendant. The claimant must prove, on
the balance of probabilities, that the defendant's breach of duty caused the harm. (Balance
of probabilities means ‘comparing the likelihood of truthfulness of different versions of a
story”). The defendant does not have to provide an explanation for the cause of harm but
a failure to do so may be a factor in deciding whether the claimant's explanation of the
cause should be accepted.

In Pickford v Imperial Chemical Industries [1998] 3 All ER 462 there was a claim in
negligence for damages for repetitive strain injury. The House of Lords said that it was
for the plaintiff to prove that her condition had been caused by repetitive movements
while typing. On the facts, she had been unable to do so.

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MULTIPLE CAUSES

However, the claimant does not have to prove that the defendant's breach of duty was the
main cause of the damage, as long as it can be shown that it was a main or significant
cause of the damage.

It may be sufficient for the claimant to show that the defendant's breach of duty made the
risk of injury more probable.

Where there are a number of possible causes, the claimant must still prove the defendant's
breach of duty caused the harm or was a material contribution to the damage.

Where the claimant's case is based on proving a material contribution to the damage, the
defendant is responsible only for that part of the damage to which his negligence has
contributed.

LOSS OF CHANCE

A claimant may lose (because of a lawyer's negligence) an opportunity to bring legal

proceedings or the claimant may lose (because of a doctor's negligence) a good chance of
recovery. Loss of chance is actionable in contract but its extent in tort is unclear.

The House of Lords have held that questions of loss of chance do not arise where there
are positive findings of fact on the issue of causation. Such a case may be an 'all or
nothing' case. See:

Hotson v East Berkshire AHA [1987] 2 All ER 909

In this case the claimant's loss resulting from the defendant's negligence also depended on
the hypothetical action of a third party, either in addition to action by the claimant or
independently of it. See the decision of the Court of Appeal in:

Allied Maples Group v Simmons & Simmons [1995] 4 All ER 907 - In this case it was
held that where the negligent act had occurred then the plaintiff had to establish on the
balance of probabilities a causal link between the defendant’s act and the plaintiff’s loss.
Once this had been done the plaintiff was entitled to recover his damages in full.
However, where the amount of the plaintiff’s loss depended upon future uncertain events
the court had to assess the likelihood of this occurrence. Where the plaintiff’s loss
depended on the hypothetical action of a third party, the plaintiff would succeed if he
could show that there was a real or substantial chance rather than a speculative chance of

23
the third party so acting. If the plaintiff succeeds in so doing then the evaluation of the
chance is part of the assessment of the quantum of damage and the range would lie
between something that just qualifies as real or substantial and near certainty. The Court
expressly declined to lay down in percentage terms what the lower and upper ends of the
bracket should be.

INADEQUACY OF THE BUT FOR TEST

The but-for test will be inadequate in a number of cases where the claimant's damage is
the result of more than one cause and where the claimant's loss is economic. This
happens, for example, where the breach of duty consists of an omission to act.

CAUSATION IN LAW

SUCCESSIVE CAUSES

Where there are two successive causes of harm, the Court may regard the first event as
the cause of the harm.

However, it is possible for a second supervening event to reduce the effect of a tort.
Where a tort is submerged in a greater injury caused by (a) another tort or (b) a
supervening (additional, unforseen) illness or non-tortious event see:

In Baker v Willoughby [1968] 2 All ER 236 the plaintiff was knocked down by the
defendant while he was crossing the road. As a result of the accident the plaintiff suffered
injuries to his left leg, which caused him some pain and discomfort and also detrimentally
affected his earning power. The plaintiff took up a new job after the accident but while he
was at work he was shot in the same leg during an armed robbery. As a result of this
second incident the plaintiff’s left leg had to be amputated. The defendant argued that his
liability to the plaintiff in respect of the injury to his left leg had to be reduced in light of
the robbery because the plaintiff’s leg had to be amputated as a result of the shot fired
during the robbery and so the effect of his negligence had been obliterated.

This argument was rejected by the House of Lords for two reasons.
They rejected the argument that the plaintiff’s loss had been diminished as a result of the
shooting. Lord Reid said that the plaintiff is not compensated for the physical injury itself
but for the loss he suffers as a result of that injury. The shooting incident had not
diminished the plaintiff’s pain and suffering nor had it diminished the plaintiff’s loss of

24
his earning capacity. The second reason for rejecting the defendant’s argument was that
had the plaintiff sued the robbers, the robbers would have been able to take advantage of
the rule that a tortfeasor takes his victim as he finds him and so would only have been
liable for the damage which they had caused to an already damaged leg. So to refuse the
plaintiff a remedy in respect of the damage done by the defendant would be to leave the
plaintiff under-compensated because he would not be able to recover in respect of that
damage from the robbers. So, to do justice on the facts of the case, the defendant was
liable to the plaintiff.

INTERVENING ACTS

Even though a person may have caused damage to another person, there could also be
other things which also occur which could have affected the damage caused.

Novus Actus Interveniens

This means that an act or event has intervened to break the chain of causation which was
set in motion by the defendant’s negligence. So even if it is believed the act of the
defendant did cause the plaintiff’s damage, it is important to look at whether any other
factors could have interfered or affected the situation in any way.

Natural Events

If the damage suffered by the plaintiff is the result of an act of nature which is
independent of the negligence of the defendant, the defendant is not liable.

In Carslogie Steamship Co v Royal Norwegian Government [1952] 1 All ER 20 the

plaintiffs’ ship was damaged in a collision caused by the negligence of the defendants.
Temporary repairs were done to the ship which restored her to a seaworthy condition. She
then set out on a voyage to America. She would not have made this trip had it not been
for the negligence of the defendants. During the voyage the ship suffered extensive
damage in a storm. The plaintiffs sought to recover, inter alia (among other things), the
cost of repairing the damage done by the storm. It was held that the defendants were not
liable for the cost of the repairs because although the ship would not have been caught in
the storm but for the negligence of the defendants, this was not in any sense a
consequence of the collision and must be treated as a supervening event occurring in the

25
course of a normal voyage. It should be noted that this was not a case where the
negligence of the defendants left the ship unseaworthy. Had this been the case then
different principles would have come into play.

If the claimant's act is a natural consequence or normal reaction to the result of the
defendants' negligence, it will not break the chain of causation - The Oropesa [1943] 1
All ER 211

Acts Of Third Parties

If it is the act of a third party which is the true cause of the damage to the plaintiff then
the general rule is that the defendant is not liable to the plaintiff. The defendant can
however be responsible for harm caused by a third party is if it can be proven that the
harm was a highly likely consequence.

Acts Of The Claimant

If the claimant suffers further injury as a result of his own actions, there will be a break in
the chain of causation only if the claimant acted unreasonably. The plaintiff’s conduct
may amount to a novus actus interveniens (‘new act intervening’) when his conduct has
been so careless that his injury can no longer be attributed to the negligence of the
defendant. But it is not every act of carelessness on the part of the plaintiff which
amounts to a novus actus interveniens. Sometimes it is held to be simply contributory
negligence on the part of the plaintiff which has the effect of reducing the damages
payable to the plaintiff rather than an event which completely breaks the link between the
defendant’s negligence and the damage to the plaintiff.

26
 REMOTENESS OF DAMAGE

Remoteness refers to the extent to which a tortfeasor is liable for the result of his actions.

Having established that the defendant owes the plaintiff a duty of care and that duty was
breached causing loss to the plaintiff, it must now be considered whether the loss which
the plaintiff sustained is one which is recoverable in negligence. The defendant is not
liable for all the loss which flows from his breach of duty of care. The law places limits
upon the extent to which a plaintiff can recover in negligence.

THE CONTRASTING APPROACH OF THE APPELLATE COURTS

The opinion of the Court of Appeal was that a defendant was liable for all the direct
consequences of his negligence, no matter how unusual or unexpected:

In Re Polemis [1921] 3 KB 560 charterers of a ship loaded a quantity of benzene on

board the ship. The benzene leaked, causing the hold of the ship to fill with vapor. (The
‘hold’ is the space for carrying cargo.) The stevedore (a person who loads and unloads
cargo from ships), employed by the charterers, negligently dropped a wooden plank into
the hold of the ship. The dropping of the plank caused a spark which ignited the vapour
and the ship exploded. The owners of the ship sued the charterers in negligence in respect
of the damage done by their servant. The charterers defended the action on the ground
that the loss caused to the owners by negligence of their servant was too remote to be
recovered in a negligence action. The Court of Appeal held that the charterers were liable
for the negligence of the stevedores and that the loss was not too remote.

However, the opinion of the Privy Council was that a person is responsible only for
consequences that could reasonably have been anticipated:

MANNER OF OCCURRENCE
If harm is foreseeable but occurs in an unforeseeable way there may still be liability.

TYPE OF HARM
The damage must be of the same type or kind as the harm that could have been foreseen.

EXTENT OF HARM
The defendant will still be liable, provided the type of harm and its manner was
reasonably foreseeable, even if the extent of the harm was not foreseeable:

27
EGGSHELL SKULLS
It is well-established that 'The tortfeasor must take his victim as he finds him'. The
defendant will be responsible for the harm caused to a claimant with a weakness or
predisposition to a particular injury or illness. In Smith v Leech Brain [1961] 3 All ER
1159

The defendants failed to provide adequate protection for the plaintiff’s husband as he was
working with molten metal in their factory. Some of the molten metal splashed out of the
tank at which he was working and burnt him on the lip. This burn induced cancer which
developed at the site of the burn. It was not at the time of the accident that the plaintiff’s
husband had any form of pre-malignant cancer. The plaintiff’s husband died from the
cancer three years after the accident. He might never have developed the cancer had it not
been for the burn. The defendants argued that they were not responsible for the death of
the plaintiff’s husband because his death was not a reasonably foreseeable consequence
of the negligence. This argument was rejected by the Court. It was held that a tortfeasor
must take his victim as he finds him. Lord Parker stated that the test was not whether the
defendants could have foreseen that the burn would induce cancer which in its turn would
kill the plaintiff’s husband, but whether the defendants could have reasonably foreseen
that the plaintiff’s husband would be burnt. The answer to the question was yes and so the
defendants were liable.

The cases suggest that a broad approach is taken by the law to the issue of injury to the
person and that as long as injury to the plaintiff is foreseeable it does not matter that the
extent or precise manner by which the injury was inflicted is unforeseeable. Such a
position is consistent with the aim of tort law which is to protect a plaintiff’s interest in
his personal safety and to uphold the principle of full compensation for tort victims.

CLAIMANT'S IMPECUNIOSITY

The claimant's impecuniosity (lack of funds) is no excuse for a failure to mitigate (lessen)
damages.

28
 OTHER FACTORS TO BE TAKEN INTO CONSIDERATION

Damage to Property
This category of damage is more difficult to deal with than damage to the person. It is
clear that it is not sufficient that some damage to the plaintiff’s property be foreseeable
but the particular type of damage.

Cases where the reasonable foresight test does not apply

There are a number of situations where the reasonable foresight test does not apply. The
test does not apply where the defendant intended to inflict harm upon the plaintiff. In
Quinn v Leatham it was stated that the intention to injure the plaintiff disposes of any
question of remoteness of damage.

Joint and Several Tortfeasors

Where two or more breaches of duty by different defendants cause the plaintiff injury, the
liability of the tortfeasors (that is the persons who have committed the torts) may be
independent; several; or joint.

Independent Liability

The Plaintiff may suffer damage as the result of two entirely separate torts. In such a case
the plaintiff has two completely separate causes of action against the two tortfeasors.
Thus in Baker v Willoughby the Plaintiff suffered injury to his left leg as a result of the
defendant’s negligence. At a later date the plaintiff had to have the same leg amputated
after he had been shot in the leg during the course of an armed robbery. It was held that
each tortfeasor was liable for the injury which he caused and that the latter injury did not
obliterate the liability of the first defendant. Thus the plaintiff is only entitled to sue each
tortfeasor for the damage they personally cause.

Several Liability

Where tortfeasors act independently to cause the same damage to the plaintiff, then these
tortfeasors are several or concurrent tortfeasors. The vital features of this form of liability
are that tortfeasors act independently and that their actions cause the same damage to the
plaintiff. Each tortfeasor is separately liable in respect of the damage, but the plaintiff can
only recover damages once.

Joint liability

Joint liability exists where two tortfeasors inflict damage on the plaintiff in the
furtherance of the ‘common design’ of the tortfeasors. This means that the persons were

29
working together in performing the act that resulted in harm. In such a case there is only
one tort committed and so the cause of action against the tortfeasors is the same and is
supported by the same evidence. Each tortfeasor is liable for the full amount but the
plaintiff can only recover once.

Joint liability does not only exist in the case of a tort committed in the course of a
common design. It also exists in the case where an employer is held to be vicariously
liable for the tort committed by his employee. Both the employer and the employee are,
therefore joint tortfeasors. Joint liability can also arise between a principal and an agent
and between an employer and his independent contractor.

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 CONTRIBUTORY NEGLIGENCE

When the damage which the plaintiff has suffered has been caused partly by his own
negligence and partly by the negligence of the defendant then the damages which the
plaintiff can recover from the defendant may well be reduced because of the plaintiff’s
own contribution to the harm caused.

In order to make out the defence of contributory negligence the defendant must prove two
things:

1. That the Plaintiff was at fault and

2. That the Plaintiff’s negligence was a cause of the damage which he suffered.

 FAULT

The Plaintiff’s fault is simply failing to look after himself properly.

The Standard of Care

According to Lord Denning in Jones v Livox Quarries Ltd [1952] 2 QB 668 “A person
is guilty of contributory negligence if he ought reasonably to have foreseen that if he did
not act as a reasonable prudent man, he might hurt himself and in his reckonings he must
take into account the possibility of others being careless.”

There are four situations where particular problems arise in establishing the requisite
standard of care.

1. Children - It is not possible to specify an age below which as a matter of law a

child cannot be guilty of contributory negligence. However, the age of the child in
a circumstance which must be considered whether it has been guilty of
contributory negligence.
2. Workmen - Where a workman sues his employer for breach of statutory duty or
possibly in negligence, the Court is more reluctant to find the employee has been
guilty of contributory negligence.

In considering whether the workman has been guilty of contributory negligence the
Court will have regard to the fact that the workman’s sense of danger has been
affected by factors such as repetition, noise, fatigue and confusion.

3. Rescuers - In Sayers v Harlow UDC [1958] 1 WLR 623 it was established that
damage can be reduced on the ground that a rescuer is guilty of contributory
negligence if the rescuer is negligent in carrying out a rescue. The Courts are
reluctant, however, to hold that a rescuer has been guilty of contributory
negligence.

31
 4. Emergencies - Where the plaintiff is placed in a position of imminent danger by
the negligence of the defendant, the Courts are more sympathetic towards the
plaintiff who makes a wrong decision in the heat of the moment.

 CAUSATION

It is not necessary that the plaintiff’s negligence contribute to the accident. What is
essential is that the plaintiff’s negligence must contribute to the damage which he has
suffered. The plaintiff’s damages can be reduced because his negligence in not wearing a
seat-belt contributed to the damage which he suffered, even though his negligence in no
way contributed to the accident.

Apportionment

Apportionment, as the word suggests, refers to what portion or how much of the damage
was caused by the plaintiff’s or defendant’s negligence.

The apportionment of damage is regarded by the Courts as a matter of fact. In assessing

what is just and equitable (fair and equal) the Courts have regard to the extent to which
the plaintiff’s and the defendant’s negligence was the cause of the damage which the
plaintiff sustained but the more important factor is how much more one party can be
blamed in comparison to the other party.

Where there is more than one defendant the position should be considered separately
between the plaintiff and each defendant.

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 VICARIOUS LIABILITY

INTRODUCTION
Employers are vicariously liable for the torts of their employees that are committed
during the course of employment.

The effect of the doctrine of vicarious liability is to find X liable to Z for the damage
done to Z by the tort of Y. The commonest example of this is the case where an employer
is rendered liable for the tort committed by his employee in the course of the employee’s
employment. There are two essentials to vicarious liability.

1. There must be an employer/employee type relationship where it is said that the

employer can be liable for his employee’s acts.

2. The tort committed by Y must be referable in some particular way to the relationship
between X and Y.

 LIABILITY

Three questions must be asked in order to establish liability:

(1) Was a tort committed?

(2) Was the tortfeasor an employee?
(3) Was the employee acting in the course of employment when the tort was committed?

EMPLOYEE OR INDEPENDENT CONTRACTOR?

Who is an employee?

Vicarious liability arises from the employment relationship and not from the relationship
of employer and independent contractor. It is important to distinguish between an
employee and an independent contractor.

Employers/masters will only be liable for the torts of their employees/servants. They will
not usually be liable for the torts of their independent contractors. It is therefore
necessary to establish the status of the tortfeasor.

To determine/differentiate between employees and independent contractors, the courts

will normally look at the intention of the parties. However, the intention of the parties is
not necessarily conclusive. Contrast, for example:

33
o Ferguson v Dawson Partners [1976] 3 All ER 817 - a building worker who at the
time of hiring was expressed to be a 'labour only subcontractor' was held to be an
employee because in all other respects he was treated as an employee. The statement
had been made for tax and national insurance purposes.

o Massey v Crown Life Insurance [1978] 2 All ER 576 - there was a detailed written
contract and the parties' intention prevailed.

Various tests for establishing an individual's employment status have been developed
through the cases:

(a) The control test

This was the traditional test. In Collins v Hertfordshire CC [1947] 1 All ER 633,
Justice Hilbery said: “The distinction between a contract for services and a contract of
service can be summarized in this way: In one case the master can order or require what
is to be done, while in the other case he can not only order or require what is to be done,
but how it shall be done.”

But in Cassidy v Ministry of Health [1951] 1 All ER 574, Justice Somervell pointed out
that this test is not universally correct. There are many contracts of service where the
master cannot control the manner in which the work is to be done, as in the case of a
captain of a ship. He went on to say: “One perhaps cannot get much beyond this 'Was the
contract a contract of service within the meaning which an ordinary person would give
under the words?'”

(b) The nature of the employment test

One accepted view is that people who have a 'contract of service' (an employment
contract) are employees, but people who have a 'contract for services' (a service contract)
are independent contractors (Ready Mixed Concrete v Minister of Pensions and NI
[1968] 1 All ER 433).

(c) The 'integral part of the business' test

This test was proposed by Lord Denning in Stevenson, Jordan and Harrison Ltd v
McDonald and Evans [1952] 1 TLR 101: “It is often easy to recognize a contract of
service when you see it, but difficult to say wherein the difference lies. A ship's master, a
chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of
service; but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a

34
contract for services. One feature which seems to run through the instances is that, under
a contract of service, a man is employed as part of the business; whereas, under a contract
for services, his work, although done for the business, is not integrated into it but is only
accessory to it.”

(d) Allocation of financial risk/the economic reality test/multiple test

Lord Wright suggested a complex test involving (i) control; (ii) ownership of the tools;
(iii) chance of profit; (iv) risk of loss (Montreal v Montreal Locomotive Works [1947]
1 DLR 161). In a later case, Cooke J referred to these factors and said that the
fundamental test was: “Is the person who has engaged himself to perform these services
performing them as a person in business on his own account?” If the answer is yes, it is a
contract for services; if no, it is a contract of service. There is no exhaustive list of
considerations relevant to determining this question, and no strict rules about the relative
weight the various considerations should carry in a particular case. Factors which could
be of importance were: (i) whether the person hires his own helpers; and (ii) what degree
of responsibility for investment and management he has (Market Investigations v
Minister of Social Security [1968] 3 All ER 732).

These factors were considered to be significant in:

Ready Mixed Concrete v Minister of Pensions and NI [1968] 1 All ER 433 – “owner-
drivers” who delivered concrete in vehicles purchased on HP from an associated
company, painted in company colours and which could not be used for private purposes
or other haulage business, were employed under a contract of carriage than of service.
Ownership of the assets (the vehicle), the chance of profit and the risk of loss were the
driver's. These factors were inconsistent with a master-servant relationship.

THE EMPLOYEE MUST COMMIT A TORT

Vicarious Liability only arises where the employee commits a tort. This is why it is
important to distinguish between an employee and an independent contractor. Vicarious
liability would not apply to an independent contractor.

THE COURSE OF EMPLOYMENT

This is the most difficult issue in vicarious liability. The employee must, of course, have
been acting within the course of his employment before the employer will be held
vicariously liable for his employee’s tort.

35
An employer will only be liable for torts which the employee commits in the course of
employment. There is no single test for this, although Parke B famously stated in Joel v
Morison (1834) 6 C&P 501 at page 503, that the servant must be engaged on his master's
business, not “on a frolic of his own”.

An employer will usually be liable for: (a) wrongful acts which are actually authorized by
him, and for (b) acts which are wrongful ways of doing something authorized by the
employer, even if the acts themselves were expressly forbidden by the employer
(Salmond & Heuston on the Law of Torts, 1996, p443). Liability for criminal acts will
also be considered.

AUTHORIZED ACTS

If an employer expressly authorizes an unlawful act he or she will be primarily liable.

WRONGFUL MODES OF DOING AUTHORIZED ACTS

Negligent and Careless Acts

The fact that the mode of doing a job is wrongful and unauthorized will not prevent the
employer being vicariously liable for it provided that the time the employee was doing
some act authorized by the employer. This has the effect of denying to employers the
argument that the mere fact the employee was going about his work in a negligent or
mistaken manner takes the employee outside the course of his employment because the
employer would not have sanctioned the commission of a negligent or mistaken act.

In the following cases it was held that the employer was vicariously liable for torts of the
employee:

o Limpus v London General Omnibus Co (1862) 1 H&C 526 - bus drivers racing,
despite a prohibition, caused a collision.

o Bayley v Manchester, Sheffield and Lincolnshire Railway Co (1873) LR 8 CP 148

- a porter, believing a passenger was on the wrong train, violently pulled him off,
causing injury.

o Century Insurance Co v Northern Ireland Transport Board [1942] 1 All ER 491

- a petrol tanker driver, smoking a cigarette threw away a match, causing an
explosion. The House of Lords held that the defendants were vicariously liable for the
tort of their employee. Although true that the driver had lit a cigarette for his own
personal benefit and not for the benefit of his employers, this act of lighting a
cigarette could not be viewed in isolation from the job he was doing at that time. At

36
 the time of the accident the driver was doing his job of discharging petrol from the
tanker, even though he was doing his job in an unauthorized and negligent fashion.

o Rose v Plenty [1976] 1 All ER 97 - a milkman, contrary to express instructions,

employed a 13-year-old assistant, injured by the milkman's negligent driving. The act
here was done for the employers' business.

In the following cases it was held that the employer was not vicariously liable:

o Beard v London General Omnibus Co [1900] 2 QB 530 - a bus conductor drove a

bus injuring a pedestrian.

o Twine v Bean's Express Ltd [1946] 1 All ER 202 - a hitchhiker had been given a lift
contrary to express instructions and was fatally injured. Lord Greene MR said that the
servant was doing something totally outside the scope of his employment, namely,
giving a lift to a person who had no right whatsoever to be there.

o Hilton v Thomas Burton (Rhodes) Ltd [1961] 1 All ER 74 - workmen drove seven
or eight miles for tea, immediately after finishing their lunch in a pub. The van
overturned and a passenger was killed.

Criminal Acts

An employer will not usually be liable for the criminal acts of employees. For example:

o Keppel Bus Co v Ahmad [1974] 2 All ER 700 - a passenger who objected to a bus
conductor's treatment of another passenger and then used insulting language was
assaulted by the conductor. The employer was held not liable by the Privy Council.
Lord Kilbrandon said that insults to passengers are not part of the due performance of
a conductor's duty.

o ST v N. Yorkshire CC [1999] IRLR 98 - a deputy headmaster of a special school,

responsible for caring for a handicapped teenager on a foreign holiday, sexually
assaulted him. Justice Butler-Sloss said that this was not an unauthorized mode of
carrying out a teacher's duties on behalf of his employer. Rather it was a negation of
the duty of the council to look after children for whom it was responsible.

However, if the employee performs their duties in a criminal manner, an employer may
be liable. See:

37
o Morris v Martin Ltd [1965] 2 All ER 725 - a fur coat sent to cleaners was stolen by
the employee whose job it was to clean the coat. The cleaners were liable for the
theft.

o Nahhas v Pier House Management (1984) 270 EG 328 - a porter entrusted with
keys by a tenant, entered her flat and stole jewellery. The employers were liable for
negligently employing a “professional thief” and breaching a duty to protect the
plaintiff's flat.

o Vasey v Surrey Free Inns [1996] PIQR P373 - the plaintiff was attacked by two
doormen and a manager employed by the defendant after he had kicked a door,
breaking glass. The Court of Appeal held the defendants vicariously liable because
the attack was a reaction to the damage to the door for the protection of the
employer's property and was not a private quarrel unrelated to the employer's duties.

Intentional Wrongful acts

In cases involving intentional wrongful acts the Courts have adopted a much more
restrictive approach to the course of employment issue. Usually if the employee is doing
an unauthorized act the employer is not liable.

Assault

Some employees, such as ‘bouncers’ at a discotheque (club) may be expected to exercise

some degree of violence in the course of their employment. We have also noted that
employees have some (although limited) authority to protect their employers’ interests in
an emergency. But outside those limited categories the Courts have been extremely
reluctant to impose liability upon employers for an assault committed by an employee.

Express Prohibition

The mere fact that an employer has placed prohibitions upon the conduct of the employee
will not of itself, operate to restrict the course of employment. The approach which the
law had adopted is to permit employers to limit the acts which the employee may do
within the course of his employment, but to deny them the ability to restrict the mode of
doing the particular act in question.

Frolics and Detours

Considerable difficulty has arisen with vehicle drivers who depart from authorized routes.

38
The generally accepted test was laid down in Joel v Morrison - “If the driver was going
out of his way against his master’s implied commands, when driving on his master’s
business he will make his master liable. But if he was going on a frolic of his own,
without being at all on his master’s business, the master will not be liable.”

Theft

Theft does not necessarily take the employee outside the course of his employment. As
was seen in the above case Morris v Martin Ltd [1965] 2 All ER 725.

Principal and Agent

A principal may be vicariously liable for torts committed by his agent in the course of his
agent’s employment.

 THE INDEMNITY PRINCIPLE

There is no doubt that employers and employees are joint tortfeasors with the result that
when the employer is held liable for the tort of his employee, the employer has the right
to recover an indemnity.

There is a term implied at common law into contracts of employment that an employee
will exercise all reasonable care and skill during the course of employment. An employee
who is negligent is in breach of such a term and the employer who has been held
vicariously liable for the tort may seek an indemnity from the employee to make good the
loss. That is, an employer can try to claim the cost from his employee.

o Lister v Romford Ice [1957] 1 All ER 125. A father was knocked down by his son,
who was employed by Romford Ice, while backing his lorry in a yard. The employers
were vicariously liable for the son's negligence and their insurers met the father's
claim. The insurers sued the son in the company's name, exercising their right of
subrogation under the contract of insurance. By a majority, the House of Lords held
that the son was liable to indemnify the employer and consequently the insurers.

This case led to controversy about insurers forcing employers to sue employees, which
would lead to poor industrial relations. Employers' liability insurers later entered into a
“gentleman's agreement” not to pursue such claims unless there was evidence of
collusion or willful misconduct.

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 LIABILITY FOR INDEPENDENT CONTRACTORS

In addition to being liable for the torts of their employees committed in the course of their
employment, employers may also in certain circumstances, be held liable for torts
committed by independent contractors which they have employed.

These cases which deal with liability for the tort of an independent contractor are NOT
examples of vicarious liability. They are all examples of primary liability of the
employers.

The general rule is that an employer is not liable for the tort of his independent
contractor. However, in D and F Estates LTd v. The Church Commissioners for
England it was acknowledged that if the main contractor in the course of the supervision
of the subcontractor comes to know that the subcontractor is carrying out his work in a
defective and foreseeably dangerous way and if he condones the negligence on the part of
the subcontractor, the main contractor would no doubt make himself potentially liable for
the consequences as joint tortfeasor.

In Alcock v Wraith [1991] 59 BLR 16, Justice Neill stated: "where someone employs an
independent contractor to do work on his behalf he is not in the ordinary way responsible
for any tort committed by the contractor in the course of the execution of the work.

There are a number of exceptions to the general rule that an employer is not liable for the
tort of an independent contractor.

The main exceptions to the principle fall into the following categories:

1. The employer is liable where he has authorized the independent contractor to commit a
tort. In such a case the employer is liable as a joint tortfeasor with the independent
contractor.

2. The employer is liable if he is negligent in choosing an independent contractor who is

not competent to carry out the job or if the employer fails to instruct him properly or fails
to check the work where he is competent to do so.

3. Cases where the employer is under some statutory duty which he cannot delegate.
Whether a Statute does impose such an’ absolute’ obligation upon the employer is of
course a question of construction of the particular statute.

40
4. Cases involving the withdrawal of support from neighbouring land.

5. Cases involving the escape of fire.

6. Cases involving the escape of substances, such as explosives, which have been brought
on to the land and which are likely to do damage if they escape; liability will attach under
the rule in Rylands v Fletcher (1868) LR 3 HL 330.

7. Cases involving operations on the highway which may cause danger to persons using
the highway.

8. Cases involving non-delegable duties (duties that cannot be delegated) of an employer

for the safety of his employees. Non-delegable duty does not mean that the employer
cannot in fact delegate performance to an independent contractor. What it means is that
the employer cannot delegate responsibility for the performance of the task.

9. Cases involving extra-hazardous acts.

Justice Neill then examined whether there was a further exception which could be relied
upon in cases of nuisance (which is another type of tort). He referred to Matania v
National Provincial Bank [1936] 2 All ER 633, where the Court of Appeal was
concerned with a claim for damages for nuisance caused by dust and noise during
building operations; Justice Slesser concluded that the work did constitute a hazardous
operation within the exception to the general rule. Justice Neill then stated that both the
general rule and the exceptions apply whether the action is a tort of negligence or
nuisance. Also, the judge was not aware of any different approach being taken as regards
to trespassing.

The employer is not liable for the collateral or casual negligence of the independent
contractor. In many cases it is difficult to discern what is meant by “collateral
negligence”.

VOLENTI NON FIT INJURIA (“To one who volunteers, no harm is done”)

Volenti is a complete defence to the plaintiff’s action. The defence is said to apply when
the defendant can prove that the plaintiff knew of the risk of harm or injury and had
voluntarily submitted to that risk. The defence, for example can be used by the employer
(defendant) to say that the plaintiff knew if the possibility of harm occurring.

THE INTENTIONAL INFLICTION OF HARM

In relation to the intentional infliction of harm, consent negatives what would otherwise
be a tort. So if a doctor performs an operation after the plaintiff has signed a consent form

41
consenting to the operation, the doctor cannot be said to commit does not commit the tort
of battery because the plaintiff has given him permission to carry out the operation.

THE NEGLIGENT INFLICTION OF HARM

It is in relation to the negligent infliction of harm that the defence of volenti has given
rise to the greatest difficulty. There are a number of conditions which must be made out
for the defence to apply.

1. Voluntariness- The plaintiff must have voluntarily submitted to the risk of injury.
This requirement was articulated by Justice Scott in the case of Bowater v Rowley
Regis Corporation [1944] KB 476 when he said that : “A man cannot be said to be
truly ‘willing’ unless he is in a position to choose freely and freedom of choice
predicates not only full knowledge of the circumstances on which the exercise of
choice is conditioned so that he may be able to choose wisely, but the absence from
his mind of any feeling of constraint so that that nothing shall interfere with the
freedom of his will.”

In the case of Smith v Baker [1891] AC 325 the plaintiff was employed by the
defendants. He worked in a quarry, drilling in the rock face. While he did this a crane
worked overhead and as both he and his employers knew there was a risk that a heavy
stone would fall from the crane. The plaintiff was never warned as to when the crane
would be operating. A stone fell from the crane and injured the plaintiff. It was held that
although the plaintiff knew of the risk of injury and incurred it as part of his job, the
defence of volenti was not made out because the plaintiff was threatened with the loss of
his job if he objected to the crane working overhead. So it could not be shown that the
plaintiff had voluntarily consented to the risk of injury. This decision is a welcome one in
so far it recognizes the industrial realities of the employment relationship.

Where, however, the employee is not under pressure at his work and adopts a dangerous
method of work which causes damage to himself, the Courts are more willing to hold that
the defence of volenti is applicable. This is because the employer did not pressure the
employee to act improperly.

2. Agreement - It is clear that the defence is applicable where the plaintiff agrees with
the defendant that the plaintiff will accept the risk of injury. Where the parties expressly
agree in advance that the defendant shall not be liable to the plaintiff for any future act of
negligence which he commits it is clear that the defence of volenti is applicable.

3. Knowledge - Mere knowledge of the danger is not sufficient of itself to establish the
defence of volenti. It must be proved that the plaintiff consented to the risk not simply
that he had knowledge of the risk.

42
 PARTIES TO AN ACTION IN TORT

INTRODUCTION
As a general rule anyone may bring an action in tort. Minors can sue in tort through their
‘next friend’. ‘A next friend’ is a person appointed to represent the minor in legal matters.

LIABILITY

Corporations- It is clearly established that a corporation, which is a legal entity separate

and distinct from its members, may commit torts and have torts committed against it.
However, there are certain torts which by their very nature cannot be committed against a
corporation, such as assault or false imprisonment. Corporations are vicariously liable for
the torts committed by their employees in the course of their employment. A corporation
may also be personally liable where the person who commits the tort is so much in
command of the company that his acts are treated as if they were acts of the company.

Unincorporated associations- Unlike corporations, unincorporated associations have no

legal personality of their own which is separate from that of their membership. Thus
clubs and similar unincorporated associations cannot sue or be sued in their own right.
The members are themselves jointly and severally liable for their torts but only for their
own torts and not for the torts of other members

Minors- There is no minimum age at which one can be found to be responsible for
committing a tort. Minors are judged by ordinary tort principles. However, a minor
cannot be sued in tort where that action would have the effect of enforcing a contract
which is not binding on him. There is no general principle in English law that a parent is
vicariously responsible for the torts of his children. But a parent may be liable in
negligence for giving the child the opportunity to cause damage.

Thus, in Newton v Edgerley a father was found to be liable in negligence when he gave
his 12 year old son a rifle without proper training and the son caused damage to the
plaintiff through his use of the gun.

Insanity- The exact effect of insanity upon a defendant’s liability in tort is uncertain. It is
however; clear that insanity is not recognized as a defence in tort actions.

43
 EMPLOYERS' LIABILITY

Employers owe certain duties to their employees. These duties are derived from both
common law and statutory sources. We have noted that an employer may be vicariously
liable for the torts of his employee. Here we are concerned now with the liability of an
employer for the injury suffered by one of his employees.

COMMON LAW DUTIES

The employer's duty to his employees is commonly dealt with under four headings, the
provision of:

(a) competent staff;

(b) a safe place of work;

(c) proper plant and equipment; and

(d) a safe system of work.

These are simply aspects of the broader duty to see that reasonable care is taken to ensure
the safety of employees.

The employer's duty to his employees is personal and non-delegable. He can delegate the
performance of the duty to others, whether employees or independent contractors, but not
responsibility for its negligent performance.

1. COMPETENT STAFF

The employer has an obligation to select competent fellow employees, and also a duty to
give them proper instruction in the use of equipment.

In Hudson v Ridge Manufacturing [1957] 2 All ER 229 there it was held that an
employer was liable for the foolish prank committed by one employee upon another in
the course of his employment. The employer was held to be in breach of his personal
duty, as he was aware of such pranks for a considerable period of time and he failed to
take proper steps to put an end to these pranks. However, the position may be different
where the employer had no cause to know that the employee has violent tendencies. In
such a case it may also be very difficult for the injured employee to argue that the
employee who assaulted him was acting in the course of his employment because of the
reluctance of the Courts to hold an employer vicariously liable for an assault committed
by his employee.

If an employer knows or can foresee that acts being done by employees might cause

44
physical or psychiatric harm to a fellow employee, it is arguable that the employer could
be in breach of duty to that employee if he did nothing to prevent those acts when it was
in his power to do so.

2. SAFE PLACE OF WORK

An employer must take such steps as are reasonable to see that the premises are safe. It
should be noted that this obligation is not an absolute one but is one which demands that
the employer take reasonable steps to provide a safe place of work.

In Latimer v AEC Ltd [1953] 2 All ER 449 it was emphasized that the employer’s
obligation to provide a safe place of work only required the employer to do what was
reasonable to eliminate risk and. Also, where the cost of eliminating the risk far exceeds
the benefit to be gained from elimination of the risk, it would not be negligent to fail to
eliminate the risk.

The employer is also under a duty with respect to the premises of a third party even
though he has no control over the premises, but the steps required to discharge this duty
will vary with the circumstances.

3. ADEQUATE PLANT AND EQUIPMENT

An employer has a 'duty of taking reasonable care to provide proper appliances and to
maintain them in a proper condition’ according to Lord Herschell in Smith v Baker
[1891] AC 325, 362). If necessary equipment is unavailable and this leads to an accident
he will be liable, although he is not necessarily bound to adopt the latest improvements
and equipment.

If the employee would not have used the safety equipment if it had been supplied, the
employer's breach of duty is not the cause of injury.

An employer will not be liable if a worker fails to make proper use of the equipment
supplied, nor where the employee acted foolishly in choosing the wrong tool for the job,
assuming that, where necessary, the employee has been given adequate instruction in the
use of the equipment.

4. SAFE SYSTEM OF WORKING

The employer is also under a duty to provide his employees with a safe system of work.
What constitutes a safe system of work depends on the facts of each case. It is a question
of fact whether a particular operation requires a system of work in the interests of safety,
or whether it can reasonably be left to the employee charged with the task. It is usually

45
applied to work of a regular type where the proper exercise of managerial control would
specify the method of working, give instruction on safety and encourage the use of safety
devices.

Although normally thought of in terms of physical safety, it is clear that the obligation to
provide a safe system of work also extends to an employee's mental health.

In Walker v Northumberland County Council [1995] 1 All ER 737 the plaintiff was
employed as a social services officer managing four teams of field workers in an area
which had a high proportion of child-care problems. He suffered a nervous breakdown
because of the stress and pressures of work and was off work for three months. Before his
return to work his supervisor agreed that assistance would be provided to lessen the
burden of the plaintiff’s workload. However, only very limited assistance was provided
and the plaintiff also had to deal with the backlog of work that had built up in his
absence. Six months later he suffered a second breakdown as a result of which he had to
stop work permanently. It was held that this breakdown was reasonably foreseeable and
was caused by the employer’s breach of their duty of care.

There is also scope for arguing that the employee has voluntarily accepted the risk: If an
employee suffers psychiatric harm as a result of witnessing a 'shocking event' for which
his employer is responsible, then the ordinary rules for such claims apply. The employee
must bring himself within the category of a 'primary victim' or satisfy the restrictive
criteria applied to 'secondary victims':

Where an employer has followed a general practice of a particular trade or industry the
claimant will have some difficulty in establishing that the practice was negligent.

In some cases a warning of the danger to a skilled employee will be sufficient to

discharge the employer's duty, and in others it may be reasonable to expect experienced
workers to guard against obvious dangers.

There are two aspects to the provision of a safe system of work:

(a) the devising of a system; and

(b) its operation.

Even if the system itself is safe, a negligent failure to operate the system, whether by
another employee or an independent contractor, will render the employer liable.

STATUTORY DUTIES

Breach of statutory duty is an entirely separate tort from an action in negligence, but it is
particularly important in the realm of employers' liability. Indeed, industrial safety

46
legislation, which is penal in nature, is the one area where the Courts have consistently
allowed such common law actions.

DEFENCES

VOLENTI NON FIT INJURIA

An employee's knowledge of the existence of a danger does not in itself amount to

consent to run the risk.

As a matter of public policy volenti is not a defence to an action for breach of statutory
duty brought by a worker against his employer.

A limited exception was admitted according to Lord Pearce in: Imperial Chemical
Industries v Shatwell [1964] 2 All ER 999

The claimant's own wrongful act may put the employer in breach of statutory duty:

Ginty v Belmont Building Specialists [1959] 1 All ER 414

This defence will apply only where the claimant is the sole author of his own misfortune.

CONTRIBUTORY NEGLIGENCE

Contributory negligence is a defence both to an action in negligence and breach of

statutory duty. In general, however, the carelessness of employees as claimants is treated
more leniently than the negligence of employers, even where liability rests upon the
vicarious responsibility of the employer for the negligence of another employee.

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 TRESPASS TO THE PERSON

1. ASSAULT

An assault is an act which intentionally causes another person to apprehend the infliction
of immediate, unlawful, force on his person.

It was said in R v Meade and Belt (1823) 1 Lew CC 184, that 'no words or singing are
equivalent to an assault'. However, the House of Lords have more recently stated that an
assault can be committed by words alone in R v Ireland [1997] 4 All ER 225, and the
Court of Appeal in R v Constanza [1997] Crim LR 576.

It is much more authoritative that words will not constitute an assault if they are phrased
in such a way that negatives any threat that the defendant is making.

The claimant must have reasonably expected an immediate battery. Thus in Stephens v
Myers (1830) 172 ER 735, the defendant made a violent gesture at the plaintiff by
waiving a clenched fist, but was prevented from reaching him by the intervention of third
parties. The defendant was liable for assault.

2. BATTERY

A battery is the actual intentional infliction of unlawful force on another person. It was
stated in Cole v Turner (1704): 'The least touching of another in anger is a battery'.

Is 'hostility' a necessary element of battery? In Re F [1990] 2 AC 1 , Lord Goff said that

he doubted whether it is correct to say that the touching must be hostile, and further: 'the
suggested qualification is difficult to reconcile with the principle that any touching of
another's body is, in the absence of lawful excuse, capable of amounting to a battery and
a trespass.' In R v Brown [1993] 2 All ER 75, the House of Lords said that if an act was
unlawful it was hostile.

If a person intentionally applies force directly to another, the claimant has a cause of
action in trespass. However, if a person does not inflict injury intentionally, but only
unintentionally, the claimant only has a claim in negligence.

The defendant's act must cause direct damage.

3. FALSE IMPRISONMENT

False imprisonment is the unlawful imposition of constraint upon another's freedom of

movement from a particular place.

48
This tort protects a person from restraint and does not give a person absolute freedom of
movement. Thus, if there is a reasonable escape route there will be no false
imprisonment.

DEFENCES

CONSENT

Consent may be given expressly by words or be implied from conduct.

A person is deemed to consent to a reasonable degree of physical contact as a result of

social interaction.

Those who take part in sports also consent to a reasonable degree of physical contact
during the course of play, that is, within the rules, even to the risk of being
unintentionally injured. However, there can be no consent to deliberate acts of violence.

Informed consent is the notion that consent is not valid unless all the risks of a surgical
procedure have been explained. A person may not bring an action, in trespass or
negligence, on the ground that they had not been informed of the potential consequences.

The issue in trespass is whether the patient consented to what was being done, and the
issue in negligence is whether the patient should have been informed of the risks.

Every adult has the right to refuse medical treatment even if it will result in permanent
injury or even death. However, a person may be deprived of his capacity to decide either
by long term mental incapacity or temporary factors such as unconsciousness or
confusion or the effects of fatigue, shock, pain or drugs. In such a case, it is the duty of
the doctors to treat him in whatever way they consider, in the exercise of their clinical
judgment, to be in his best interests.

LAWFUL ARREST

In Albert v Lavin [1981] 3 All ER 878, Lord Diplock stated: "… every citizen in whose
presence a breach of the peace is being, or reasonably appears to be about to be
committed has the right to take reasonable steps to make the person who is breaking or
threatening to break the peace refrain from doing so; and those reasonable steps in
appropriate cases will include detaining him against his will …"

The police must not act unlawfully.

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SELF DEFENCE

It has long been an established rule of the common law that a person may use reasonable
force to defend himself, another person, or his property from attack. What is reasonable
force is a question of fact in each case.

A person may make a mistake as to their right to self defence. In such a situation, the
criminal law allows a defendant to be judged on the facts as he honestly believed them to
be.

NECESSITY

In Re F (above), a case concerning when medical treatment can be justified when given
without consent, Lord Goff (having explained public necessity and private necessity)
stated:

"There is, however, a third group of cases, which is also properly described as founded
upon the principle of necessity and which is more pertinent to the resolution of the
problem in the present case. These cases are concerned with action taken as a matter of
necessity to assist another person without his consent. To give a simple example, a man
who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby
saving him from injury or even death, commits no wrong. But there are many emanations
of this principle, to be found scattered through the books".

Lord Goff went on to say that the present case was concerned with action taken to
preserve the life, health or well-being of another who is unable to consent to it. The basic
requirements, applicable in these cases of necessity, were "not only (1) must there be a
necessity to act when it is not practicable to communicate with the assisted person, but
also (2) the action taken must be such as a reasonable person would in all circumstances
take, acting in the best interests of the assisted person".

PROVOCATION

The authority on provocation and contributory negligence is Lane v Holloway [1967] 3

All ER 129

50
 RESTRICTIVE COVENANTS

A purchaser may not want to use the land for the purpose for which it was allocated. The
covenant itself must not be restrictive in nature on how one proprietor will use his land in
relation to the neighbours.

The following are examples of restrictive covenants:

1. No bath water used for domestic purposes in respect of the said land or any part
thereof or any water except storm water shall be permitted or allowed to flow
form the said land or any part thereof on to any road street or land adjacent to the
said land.
2. No building or nay other permanent structure shall be erected on the said land
within thirty feet form the centerline of the parochial road and not less than five
feet from the adjoining fences.
3. All gates and doors in or upon any fence or opening into any roads shall open
inwards.
4. There shall be no further sub-division of the said land.
5. The registered proprietors shall not hang or display on or from the windows or
other parts of the building on the said land any laundry, washing clothes, bedding
or other materials or articles so as to be visible from the roadway.
6. The natural drainage of the said land shall not be blocked or impeded in any way.
7. Drainage shall be intercepted and disposed of to the satisfaction of the relevant
authorities.

8. The registered proprietor or proprietors of the said land shall not in any manner
restrict or interfere with the discharge of storm water flowing off the roads onto
the said land and the Road Authority shall not under any circumstances be liable
to the registered proprietor or occupier or of the said land for any damage
occasioned by storm water flowing from the roads.

9. No sign or hoarding or other advertisement shall be erected on the land except as

specifically permitted by the Local Planning Authority.

10.The registered proprietor shall permit the erection or poles and guys to facilitate
the extension of electricity and telephone services at all times these to be erected as
near as practicable to the boundary lines.

11. There shall be a satisfactory building site on the said land with ingress/egress.

12. The Development of the said land within the sub-division must be submitted to
the Saint Catherine parish council in the form of an application with detailed
drawings for approval before any such development is undertaken.

13. Not to erect any factories or other manufacturing enterprises on the land.

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 14. Not to erect more than one private dwelling house on the said land to be used for
residential purposes.

How does the Law assist a client who is seeking to change the way he uses the property?

In Jamaica there are statutory provisions which have been put in place to discharge
restrictive covenants, in the form of the Restrictive Covenants (Discharge and
Modification) Act.

The grounds for discharging these covenants are:

1. The change in the neigbhourhood or character of the property makes the

restrictions obsolete.
2. The continued existence of the restriction would impede the reasonable use of the
property without any particular benefit to the persons who are entitled to the
restriction.
3. Persons of full age and capacity who are entitled to the benefit of the restriction
have agreed expressly or by implication by their acts or omission to the discharge
or modification.
4. The proposed discharge will not injure the person entitled to the benefit.

Under common law the persons entitled need to give permission.

The Court is also concerned about adjoining land owners. Even though the Act says you
can use any of these grounds, in many cases you need to go on all four grounds.

The persons who would be named as respondents would be all the persons who would
have the benefit of the covenant, that is, the registered proprietors.

You have to prove to the Court that you have a good ground on which you are seeking for
a discharge or a modification of the covenant and on what terms.

You need to clearly identify which covenants you want discharged or modified. In
support of the application, the applicant must spell out the grounds and what is the
evidence in support of that ground. You need to ensure that the persons who sign the
consent form are capable.

On your first appearance in front of the judge it is unlikely that the covenant will be
modified, you would need to get support form various agencies, for example, the
environmental agency. They will take into account the impact of environmental issues.
The Court will look at the wider impact of the discharge or modification of the covenant.

The prudent thing to do is to apply for the discharge or modification before one actually
starts disobeying it.

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With regards to the sale of a property the parties can agree that the vendor applies for the
discharge or modification, this will have to be something that the parties agree and
Understand. It is therefore in the interest of the purchaser to ensure that the intended use
of the property is consistent with the covenants of use and enjoyment of that property.

The following are examples of modifications:

1. No building or structure or structures shall be erected on the said land nearer than
Fifty feet from the centre adjoining Main Roads or Thirty Feet from the centre of
adjoining Parochial Roads and Streets and not less than Five Feet from the
adjoining boundaries.

Modified to read:

1. No building or structure or structures shall be erected on the said land nearer than
Fifty feet from the centre adjoining Main Roads or Thirty Feet from the centre of
adjoining Parochial Roads and Streets and not less than Five Feet from the adjoining
boundaries SAVE AND EXCEPT the eave of the building which his the eave of the
building which is within Five Feet of the south eastern boundary.

2. Not to set up any building or structure on the said land nearer than eight feet to
any road fence on which the same front nor less than four feet from any other
boundary.

Modified to read:
Not to set up any building or structure on the said land nearer than eight feet to any
road fence on which the same front nor less than four feet from any other boundary
SAVE AND EXCEPT that the eave of the building to the road and northern and
southern boundaries are less than eight feet and four feet respectively. The eave
around the building is two feet wide.

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